FEDERAL COURT OF AUSTRALIA NADQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 461 NADQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1678 OF 2001 EMMETT J 15 APRIL 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1678 OF 2001 BETWEEN: NADQ APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 15 APRIL 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the application be dismissed; and 2. the applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1678 OF 2001 BETWEEN: NADQ APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE: 15 APRIL 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant arrived in Sydney on 14 August 1986 on a three month visitor visa. On 13 October 1986 he lodged an application for resident status. That application was refused on 26 October 1988. The applicant lodged a request for reconsideration on 14 November 1988. The reconsideration was refused on 4 January 1990. It is not clear whether the applicant was the holder of a visa in the meantime. However, on 13 September 1999 a bridging visa was granted. 2 On 26 April 2001 the applicant lodged an application for a protection visa and on 13 May 2001 a bridging Class E visa was granted pending the consideration of the application for a protection visa. That bridging Class E visa was cancelled on 5 September 2001 pursuant to s 501 of the Migration Act 1958 (Cth) ("the Act"). The applicant then sought review of that decision by the Administrative Appeals Tribunal ("the Tribunal"). On 29 November 2001 the Tribunal affirmed the decision to cancel the Class E visa. By notice of appeal filed on 24 December 2001, the applicant purported to appeal from the decision of the Tribunal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). 3 The Tribunal's decision of 29 November 2001 is a privative clause decision as defined in s 474(2) of the Act. Accordingly, pursuant to s 483 of the Act, s 44 of the AAT Act does not apply to the decision. The appeal, as originally framed, is therefore incompetent. On the other hand, the Minister accepts that the Court has jurisdiction to deal with the matter pursuant to s 39B of the Judiciary Act 1903 (Cth) subject to the operation of s 474(1). 4 Section 474(1) provides that a private clause decision: · is final and conclusive; and · must not be challenged, appealed against, reviewed, quashed or called in question in court; and · is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. 5 However, notwithstanding the provisions of s 474(1), the Tribunal's decision may nevertheless be subject to review pursuant to s 39B of the Judiciary Act, in the circumstances described later. Section 39B provides as follows: "(1) …the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter." 6 A provision such as s 474(1) should be interpreted (see The King v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 615) as meaning that no decision that is in fact given by the Tribunal will be invalidated on the ground that the Tribunal has not conformed to the requirements governing its proceedings or the exercise of its authority or that the Tribunal has not confined its acts within the limits laid down by the provision giving it authority, unless the decision: · is not a bona fide attempt to exercise power by the Tribunal; · does not relate to the subject matter of the Act; · is not reasonably capable of reference to the power given to the Tribunal. THE TRIBUNAL'S DECISION 7 Section 501(2) of the Act provides that the Minister may cancel a visa that has been granted to a person if: "(a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test." It was common ground before the Tribunal that the applicant does not pass the character test. Accordingly, it was open to the relevant decision maker to cancel the applicant's visa. The only question concerns the proper exercise of the discretion to do so. 8 Section 499(1) of the Act provides that the Minister may given written directions to a person or body having functions or powers under the Act. Under s 499(2A) a person or body must comply with the direction. A direction has been given by the Minister pursuant to s 499 concerning the exercise of discretion to cancel a visa under s 501, namely Direction Number 21 (Direction – Visa Refusal and Cancellation under Section 501) ("the Direction"). THE TRIBUNAL'S DECISION 9 The Tribunal recorded that the applicant said that he came to Australia in order to visit his sister and not to remain in Australia. However, within a short period, the applicant lodged an application for residency status on the basis of a marriage to Tracey Ann Hodkinson and was working for his brother-in-law. The Tribunal concluded, on the balance of probabilities, that the marriage was, at least for a period, a sham and that the applicant was a party to it in order to obtain residency rights. Subsequent to his parting from Ms Hodkinson, the applicant formed a de facto relationship with a woman by whom he had a son. The applicant is now in a further de facto relationship with another woman with whom he has had a daughter. 10 The Tribunal concluded that the applicant came to Australia in order to stay here. Further, the Tribunal found that the applicant had been illegally present in Australia for many years and knew that he was here illegally. Nevertheless, he did not seek to regularise his status and worked in breach of the Act until he was imprisoned in 1997. 11 The Tribunal had before it evidence that indicated that the applicant had been convicted of a number of offences including: · robbery in company; · causing wounding and grievous bodily harm; · firing a loaded fire arm in a public place; · common assault; · supplying prohibited drugs; · having stolen goods in custody; · possessing a prohibited drug. In respect of those offences the applicant was sentenced to several prison terms and was fined on a number of occasions. 12 The Tribunal considered that the evidence of the applicant before it could not be characterised as truthful. His answers repeatedly appeared to be made up on the spur of the moment and he frequently resorted to answering by saying "Don't know" or "Don't remember". The Tribunal observed that that was particularly so in relation to the armed robbery, of which the applicant said he remembered nothing at all. The Tribunal considered that to be "inherently improbable in the extreme". 13 The Tribunal concluded that the applicant had, from the time when he first arrived in Australia, displayed a wanton disregard for Australia's laws. Apart from his illegal work over many years, in breach of the Act, the Tribunal found that he sought to deceive the Department by entering into a sham marriage. The Tribunal also referred to "murky activities in Kings Cross" involving dealing in drugs and receiving stolen property. 14 Clause 2.3 of the Direction provides for three primary considerations as follows: "(a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children." 15 Clause 2.3(a) is explained by clause 2.5 as follows: "2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include: (a) the seriousness and nature of the conduct; (b) the likelihood that the conduct may be repeated (including any risk of recidivism); and (c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)." 16 The grounds of review relied on by the applicant in his original notice of appeal were, in substance and effect, that the Tribunal failed to take into account the following relevant considerations: ·the applicant had an excellent record while in prison, including weekend visits to his family and work release; ·the applicant had a relationship with his young daughter; ·the applicant had an offer from an employer for full-time employment on his release from prison. 17 The Tribunal gave express consideration to the claims of the Direction and adverted to each of the matters that are the subject of the grounds in the course of dealing with one or other of the subclauses of Part 2 of the Direction. There is no suggestion that the Tribunal failed to deal with any relevant clause of the Direction and, accordingly, it is necessary only to deal with those clauses that bear on the matters just mentioned. 18 Clause 2.10 of the Direction requires consideration of the risk of recidivism. In dealing with that clause, the Tribunal observed that the applicant had been incarcerated for some years. It commented that, when not in jail, the applicant had consistently displayed a disregard for Australia's laws. On the other hand, the Tribunal referred to "evidence of recent good conduct". The Tribunal considered that, whilst there was some evidence of reform, the risk of recidivism could not be discounted. The Tribunal found that, while in prison, the applicant had attended courses and had behaved sufficiently well to be granted to weekend release and to obtain employment. The applicant's employer said that he would employ the applicant on his release. The Tribunal also referred to favourable reports of the applicant from church representatives and officials in the prison system. 19 Clause 2.13 of the Direction required the Tribunal to take into account, as a primary consideration, the interests of any relevant child. The Tribunal found that the applicant is devoted to his daughter, who is in turn devoted to him. The Tribunal accepted that the best interests of the daughter might be served by being reunited with the applicant. The Tribunal found that, for some considerable time, the daughter and her mother have been supported by the Australian Social Security System. The applicant went to prison at a time when his daughter was 13 months old. The Tribunal found that, while there has been contact with her since then, "that contact has been (necessarily) intermittent". The Tribunal concluded, nevertheless, that that was a factor that should be taken into account in favour of the applicant. 20 The Tribunal referred to the factors that favoured the applicant as including the follows: · the evidence of recent good conduct while in prison; · the fact that he is devoted to his daughter, even though that devotion was not sufficient to prevent him from committing serious crimes; · the applicant's relationship with his daughter's mother. 21 It is clear from a consideration of the reasons of the Tribunal that the Tribunal did take into account the applicant's record while in prison, his relationship with his daughter and the fact that he had been offered full time employment. The applicant's complaint in his notice of appeal, therefore, is not made out. The weight to be given to those factors is a matter for the Tribunal. There is no reason to doubt that the Tribunal gave genuine consideration to those matters but concluded that the applicant's criminal record over many years, coupled with his disregard for Australia's laws, had the effect that "the balance comes down against him". The Tribunal concluded that the applicant's dishonest and criminal conduct over so many years, together with his dishonest evidence before the Tribunal, was such that, on balance, the discretion could not be exercised in his favour. 22 No attempt has been made to establish that the Tribunal's decision was not a bona fide attempt to exercise the power conferred upon it to exercise a discretion in relation to cancellation pursuant to s 501(2) of the Act. The decision clearly related to the subject matter of s 501(2) and it is clearly capable of being referred to the power conferred by that provision. It follows that the Court is bound to conclude that the exercise of power by the Tribunal was valid. In any event, I am not persuaded that there was any defect in the exercise of the discretion. 23 It follows that the application should be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 12 April 2002 Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 April 2002 Date of Judgment: 12 April 2002 I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 15 April 2002 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Australian Government Solicitor Date of Hearing: 15 April 2002 Date of Judgment: 15 April 2002